BRIAN A. ANGELINI, ESQ. [SBN 234072]

COMPLAINT

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BRIAN A. ANGELINI, ESQ. [SBN 234072] ANGEL AT LAW, INC., a Professional Law Corporation 1817 N. Fuller Avenue #204 Los Angeles, CA 90046 Telephone: (818) 675-4236 Facsimile: (818) 975-5201 [email protected] Attorney for Plaintiffs, Cecil Cabalu and Natividad Cabalu

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF ALAMEDA – RENEE C. DAVIDSON COURTHOUSE

CECIL CABALU, an Individual; NATIVIDAD CABALU, an Individual,

Plaintiffs,

vs. MISSION BISHOP REAL ESTATE, INC., d/b/a CENTURY 21 REAL ESTATE, LLC; ISA ATIENZA, an Individual; ONE WEST BANK FSB, Individually and as Successor in Interest to INDYMAC FEDERAL BANK F.S.B. and INDYMAC MORTGAGE SERVICES; QUALITY LOAN SERVICE CORPORATION; DEUTSCHE NATIONAL BANK TRUST CO.; AND DOES 1-20, INCLUSIVE,

Defendants.

CASE NO.: VERIFIED COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF AND DEMAND FOR JURY TRIAL

1. TO SET ASIDE TRUSTEE’S SALE; 2. TO CANCEL TRUSTEE’S DEED; 3. QUIET TITLE; 4. DEMAND FOR AN

ACCOUNTING; 5. SLANDER OF TITLE; 6. FRAUD;

7. TO VOID CONTRACT BASED ON IMPOSSIBILITY OF PERFORMANCE (CAL. CIV. CODE §§1411, 1511, 1595 et. seq.);

8. VOID CONTRACT BASED ON UNCONSCIOUNABLENESS TO (CAL. CIVIL CODE § 1670.5(A));

9. BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; 10. VIOLATION OF CAL. CIVIL

CODE§§ 1920 AND 1921; 11. VIOLATION OF CAL. CIVIL

CODE § 1916.7; 12, RESCISSION/CANCELLATION; 13. VIOLATION OF CAL. BUSINESS AND PROFESSIONS CODE § 17200 ET SEQ; 14. BREACH OF FIDUCIARY DUTY; 15. VIOLATION OF CAL. WELFARE & INSTITUTIONS CODE § 15600, ET SEQ. (ELDER ABUSE);

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16. CONSPIRACY; 17. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; 18. INJUNCTIVE RELIEF; 19. DECLARATORY RELIEF; AND 20. VIOLATION OF CAL. CIV. CODE

SECT. 1632. Plaintiffs, CECIL CABALU and NATIVIDAD CABALU, allege:

JURISDICTION

1. The transactions and events which are the subject matter of this Complaint all

occurred within the County of Alameda, State of California.

2. The property is located at 5266 Falmouth Place, Newark, California 94560, in the

County of Alameda, California. The Assessor’s Parcel Number is 092A-0712-036-00.

PARTIES

3. Plaintiffs, CECIL CABALU and NATIVIDAD CABALU ("Plaintiffs") are natives

of the Philippines, and while they can speak English, are much more comfortable speaking,

writing and reading in their native Philippine dialect of Tagalog. Plaintiff CECIL CABALU was

sixty-six (66) years of age when the written contract which is the subject matter of this action was

discussed, negotiated and consummated. Plaintiffs are now, and at all times relevant to this action,

were residents of Alameda County, State of California. At all times relevant to this action,

Plaintiffs owned real property commonly known as 5266 Falmouth Place, Newark, Alameda

County, State of California (the "Property"). The Property is further described as Assessor's Parcel

Number 092A-0712-036-00.

4. Defendant, MISSION BISHOP REAL ESTATE, INC., d/b/a CENTURY 21

REAL ESTATE, LLC (“CENTURY 21”) was at all times relevant to this action a corporate entity

organized under the Laws of the State of California with a principal place of business of 39180

Liberty Street, #101, Fremont, California 94538. At all times relevant in this action, this

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Defendant purported to be authorized to conduct business within the State of California, and in

fact, conducted business within the County of Alameda on a regular basis. This Defendant has

registered with the Secretary of State of California that its Agent for Service of Process is Alan N.

Bishop, who is located at 43682 Excelso Drive, Fremont, California 94539.

5. Defendant, ISA ATIENZA (“ATIENZA”) was at all times relevant to this action a

Real Estate Agent purporting to be licensed by the State of California and at all times referenced

herein conducting herself and fulfilling her duties with the full support, authority, knowledge and

consent of Defendant CENTURY 21. At all times referenced herein, ATIENZA conversed with

Plaintiffs in the Philippine dialect of Tagalog.

6. Defendant, ONE WEST BANK (“ONE WEST”) is a corporate entity organized under

the laws of an unknown State, purporting to have its corporate headquarters at 888 East Walnut

Street, Pasadena, California 91101. This entity purchased or otherwise acquired INDYMAC

FEDERAL BANK, F.S.B. and INDYMAC MORTGAGE SERVICES. While the specific acts

and omissions referenced herein were committed by INDYMAC FEDERAL BANK, F.S.B. and

INDYMAC MORTGAGE SERVICES, liability therefore, is imputed upon ONE WEST as their

successor in interest and due to the fact that certain defenses are not available to a “holder in due

course” which are the subject of this action.

7. Defendant QUALITY LOAN SERVICE CORPORATION, (“QUALITY”) is a

corporation organized under the laws of the State of California, with a business address of 12141

5th Avenue, San Diego, California 92101. QUALITY’s agent for service of process in California,

as registered with the Secretary of State, is Kevin R. McCarthy, 2141 5th Avenue, San Diego,

California 92101.

8. Defendant, DEUTSCHE NATIONAL BANK TRUST CO., (“DEUTSCHE”) is a

private company categorized under NATIONAL CONSUMER COOPERATIVE BANK with a

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principal place of business of 2000 Avenue of the Stars, Suite 1000, Los Angeles, California

90067.

9. Plaintiffs will further amend this Complaint, adding one or more Doe Defendants at a

point and time later.

10. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as

DOES 1 - 25 Inclusive, and therefore sues these defendants by such fictitious names. Plaintiffs

will amend this Complaint to allege their true names and capacities when ascertained. Plaintiffs

are informed and believe and based thereon allege each of the fictitiously named defendants is

responsible in some manner for the injuries to Plaintiffs alleged herein, and that such injuries as

herein alleged were proximately caused by such defendants.

11. Plaintiffs are informed and believe and thereon allege that at all times herein

mentioned, that each of the defendants were the agents, employees, partners, joint venturers, co-

conspirators, successors or predecessors in interest, owners, principals, and employers of the

remaining defendants, and in doing the things hereinafter alleged, were acting within the course

and scope of such agency, partnership, employment, ownership, joint venture and/or conspiracy.

Plaintiffs are further informed and believe and based thereon allege that the acts and conduct

herein alleged of each such Defendant were known to, authorized by, and/or ratified by the other

Defendants, and each of them.

12. Whenever in this Complaint an act or omission of a corporation or business entity is

alleged, said allegation shall be deemed to mean and include an allegation that the corporation or

business entity acted or omitted to act through its authorized officers, directors, agents, servants,

and/or employees, acting within the course and scope of their duties, that the act or omission was

authorized by corporate managerial officers or directors, and that the act or omission was ratified

by the officers and directors of the corporation.

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13. While the complained of loan was originated by Defendant ONE WEST, as successor

in interest to INDYMAC FEDERAL BANK, FSB, ATIENZA and CENTURY 21, DEUTSCHE,

and any and all subsequent holders of the Notes took these notes subject to all defenses which the

Plaintiffs have against ONE WEST, as successor in interest to INDYMAC FEDERAL BANK,

FSB, ATIENZA and CENTURY 21 and any other successors to these Notes and Deeds of Trust in

accordance with established California law.

JURY TRIAL DEMAND

14. Plaintiffs, CECIL CABALU and NATIVIDAD CABALU request a jury trial on all

issues in this matter.

FACTUAL ALLEGATIONS

15. On or about January 2007, Plaintiffs’ contacted ATIENZA at CENTURY 21 in order

to discuss the possibility of refinancing their primary residence in order to obtain a fixed interest

rate, reduce their monthly payments, reduce their interest rate and, if possible, use some of the

equity they had in their home in order to make home improvements. Plaintiffs had protected their

credit all their adult lives, and in fact had credit scores of well over 700 at the time they contacted

ATIENZA. Plaintiffs and ATIENZA conversed in Tagalog, a dialect from the Phillipines.

16. Plaintiffs believe, and based upon so contend, that ATIENZA took advantage of

Plaintiffs and used their common ground of Philippino heritage to lure them into believing that

they could trust her. They held “friendly” conversations in Tagalog, shared confidential financial

information, as well as shared stories from the Philippines, and at all times Plaintiffs thought that

ATIENZA had befriended them. Therefore, based on her training, education, and charisma, they

trusted her and believed that she was looking out for their best interests when she gave them advice

and counsel on the particular loan product she offered them. At all times, ATIENZA conversed in

Tagalog, and continually assured them that she was “looking out for them.”

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17. Plaintiffs were very specific when they indicated the loan they were interested in

obtaining. They stated that they wanted a fixed interest rate for the life of the loan, wanted a lower

interest rate as rated had dropped at the time to historical lows, and if possible, wanted to use some

of their equity to complete some home improvements. They had been at all times responsible in

their financial dealings, and had met all of their financial obligations, as evidenced by their stellar

credit ratings.

18. Plaintiff CECIL CABALU was a senior citizen and heavily relied upon the honesty

and integrity of the name of Defendant, CENTURY 21 and ATIENZA.

19. Plaintiffs’ affirmatively provided to ATIENZA prior income tax records and W-2s

which reflected that Plaintiffs earned approximately $4,000.00 per month. Plaintiffs also provided

pay stubs, and completed an IRS Form 4506-T which gave Defendants authority to obtain

information directly from the IRS to verify their income. Verifying income and assessing whether

a borrower can repay the loan at the fully amortized payment is a lender’s duty and the law, both

federally and in California.

20. Defendant ATIENZA completed the residential loan application on behalf of Plaintiffs

and was provided true and accurate income and employment information. At such time, she

informed Plaintiffs that it would take approximately thirty (30) to forty-five (45) days to complete

the loan application and approval process.

21. Approximately two (2) weeks following their initial conversation with ATIENZA

wherein ATIENZA was provided with Plaintiffs’ income and employment information, Plaintiffs

received a telephone call from ATIENZA who wanted to “re-visit” Plaintiffs’ employment and

income information.

22. ATIENZA informed Plaintiffs that their loan application had been denied, but that she

would “figure out something” in order to “help them out.” This intensified the faith and trust

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Plaintiffs had in ATIENZA, and made them believe even more that ATIENZA was a person who

was looking out for their best interests, knew their situation, and was making it a priority to help

them refinance their home to a better rate.

23. A few weeks later, ATIENZA contacted Plaintiffs and informed them that their loan

application had been approved. Upon being asked by Plaintiffs, she did not state what she had

“done” in order to get the application approved. ATIENZA assured Plaintiffs that the initial denial

of the loan application had been a mistake, and that she was able to “clear up the problem” and get

the Plaintiffs “exactly what they had asked for.”

24. The Plaintiffs were lured into accepting two (2) loans on their property with “better”

rates, and the refinance loans closed on January 24, 2007. Plaintiffs were offered, in the aggregate,

the amount of $808,100 as a 1st and 2nd Deed Cash Out Refinance, and were advised by ATIENZA

and the loan documents also reflected that the monthly payment on the loan would be $2,562.74

with an interest rate of 1.75%. The loans, in the aggregate, totaled ninety percent (90%) of the

appraised value of the Property. The loans were secured by a 1st and 2nd Deed of Trust and

promissory note. The loans were extended by ONE WEST as successor in interest to IndyMac

Federal Bank, FSB.

25. When it came to signing and completing the loan, Plaintiffs were given no time to

review the loan documents and the documents were signed all at the same time, in one place, in

less than half an hour. Plaintiffs were unable to understand the language contained therein and

despite their objections, signed the loan documents as demanded by ATIENZA. The language

used in the promissory note was incomprehensible, filled with legalese and unintelligible language,

all designed to confuse the average purchaser such as Plaintiffs. The loan documents were not

provided to Plaintiffs in their native Tagalog dialect. ATIENZA, in a conspiracy with ONE

WEST, as successor in interest to INDYMAC FEDERAL BANK, FSB, used the faith she knew

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Plaintiffs had in her in order to obscure the rights of Plaintiffs, and to take advantage of their

elderly status and limited ability to understand the English language in general. The language

contained in the documents, and the reassurances of ATIENZA, were designed to ensure that

Plaintiffs did not comprehend the true nature of the agreement and the extraordinary costs and

risks that were contained within. As a result, Plaintiffs relied upon ATIENZA and the statements

contained in the loan documents concerning the requested monthly payment. They were simply

shoved documents in order to sign, told by trusted ATIENZA to “sign here” and “sign there,”

assuring Plaintiffs all the while that the loan documents comported with everything that they had

discussed. Plaintiffs are informed and believe and thereon allege, that each of the Defendants was,

and at all relevant times were, acting within the scope of their authority as such agents, employees,

co-conspirators or alter-egos and with the permission and consent of the remaining named and un-

named co-Defendants.

26. Plaintiffs dutifully made the loan payment as requested, in the amount of $2,562.74 per

month. What they did not know, and what ATIENZA and ONE WEST as successor in interest to

INDYMAC FEDERAL BANK, FSB conspired together to keep from Plaintiffs, is that if the

requested “principal and interest” minimum payment of only $2,562.74 per month was made every

month, $4,407.22 was added each month to the principal, and a portion of the interest rate that the

Plaintiffs were paying actually went into the pockets of Defendants in the form of a yield spread

premium. After consultation with experts, it was discovered for the first time that this loan was a

five (5) year fixed option Adjustable Rate Mortgage with a teaser rate of 1.75% and a true interest

rate of 6.75% and that for five (5) years negatively amortized with a margin of 2.57%.

27. In December 2008, Plaintiffs discovered that the principal amount of their loan was

steadily increasing each month, despite their paying the loan payment stated in their loan

documentation as being required. Plaintiffs’ contacted INDYMAC FEDERAL BANK, FSB to

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inquire as to why the principal was increasing every month, but Defendants refused to speak to

them about the issue.

28. Fearing that something had gone terribly wrong, Plaintiffs contacted an attorney at the

Nocos Law Firm. It was during that consultation, which occurred in December 2008, that the true

nature of the loan was discovered for the first time. Plaintiffs were advised at this time that the

residential loan application submitted by ATIENZA and accepted by ONE WEST, as successor in

interest to INDYMAC FEDERAL BANK, FSB, without the documentation or verification

required by law, indicated that Plaintiff, CECIL CABULU was predominately self-employed and

earned in excess of $22,000 per month selling real estate, when in fact, CECIL CABALU is a

quality assurance technician. Plaintiffs were further advised that the loan they had been lured into

accepting was a stated income loan, which was not appropriate for wage earners, was of a nature

that was completely unsuitable to Plaintiffs, who were senior citizens and very close to the time

that they would be on a fixed income, at a much higher interest rate than they should have been

offered, was directly contrary to the stated intentions of Plaintiffs, and despite providing full

documentation disclosing their income, the loan was a “no documentation” loan. These facts were

all concealed from Plaintiffs by ATIENZA and later by all other Defendants, in order to obtain

Plaintiffs’ signatures on the loan documents, and receive the profits, commissions, and other “junk

fees” and yield spread premiums to which they were not entitled. Defendants ATIENZA, ONE

WEST, as successor in interest to INDYMAC FEDERAL BANK, FSB and one or more other

Defendants, including DOE Defendants, conspired with each other to financially abuse Plaintiffs,

and to take advantage of the fact that they were senior citizens, in order to financially profit, at

their expense and to their detriment.

29. On March 5, 2009, a Notice of Default and Election to Sell Under Deed of Trust was

caused to be recorded on the Property. Plaintiffs spoke with their attorney, who advised them that

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in April or May he would “begin working” on a loan modification, as there were “many programs

out there” and to not worry about the notice.

30. A few months passed and a Notice of Trustee’s Sale was recorded upon the Property

with a date of Trustee’s Sale set for June 30, 2009. Plaintiffs attempted to reach their attorney as

much as possible knowing the imminent threat, but to no avail.

31. On June 29, 2009, one (1) day before the sale of their Property, calling from a different

number than their home number which registered on caller-id, NATIVIDAD CABALU finally

reached their attorney, and was advised by a paralegal that they should probably file for

bankruptcy, as the modification application was denied.

32. Plaintiffs became aware that a loan modification package was sent to Plaintiffs’

attorney by ONE WEST BANK, as successor in interest to INDYMAC FEDERAL BANK, FSB

and INDYMAC MORTGAGE SERVICES, but no result was communicated to Plaintiffs until one

(1) day before the sale.

33. The Property was sold on June 30, 2009 by Defendant QUALITY to Defendant

DEUTSCHE for $537,065.00; almost $300,000 less than Plaintiffs’ loan on the Property.

34. On July 27, 2009 Plaintiffs were served with a 3-Day Notice to Vacate Property.

35. On August 6, 2009 Plaintiffs were served with an Unlawful Detainer Action bearing

Alameda County Case Number FG09466501.

36. Now Defendants, in completion of their plot and plan to cause financial harm to befall

Plaintiffs, senior citizens who should be enjoying the benefits of having worked their whole lives,

and to take the Property Plaintiffs call their home, have transferred title to their property, and are

threatening to have them forcefully removed from their home.

///

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FIRST CAUSE OF ACTION (To Set Aside Trustee Sale)

37. Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1 through

36.

38. At all times relevant to this action, Plaintiffs owned real property commonly known as

5266 Falmouth Place, Newark, Alameda County, State of California (as defined above, the

"Property"). Further described as Assessor's Parcel Number: 092A-0712-036-00.

39. Defendant DEUTSCHE, as trustee of the IndyMac INDX Mortgage Trust 2007-FLX2

and DOE Defendants 1 to 25, Inclusive, claim to be the owner, by virtue of a trustee’s deed from

QUALITY, to the Property described in paragraph 2 and 38.

40. Defendant QUALITY is a corporation organized under the laws of the State of

California, authorized to engage in the title insurance and/or trustee business as a trustee company

within the State of California, Alameda County. QUALITY is not the trustee pursuant to the Deed

of Trust recorded on January 31, 2007 as Instrument No. 2007047234 as referenced in the Notice

of Trustee Sale recorded July 8, 2009 as Instrument No. 2009216135.

41. Defendant CENTURY 21 was at all times relevant to this action a corporate entity

organized under the Laws of the State of California with a principal place of business of 39180

Liberty Street, #101, Fremont, California 94538. At all times relevant in this action, this

Defendant purported to be authorized to conduct business within the State of California, and in

fact conducted business within the County of Alameda on a regular basis. This Defendant has

registered with the Secretary of State of California that its Agent for Service of Process is Alan N.

Bishop who is located at 43682 Excelso Drive, Fremont, California 94539. CENTURY 21 was

the broker of record for the loan placed on the Property.

42. Defendant, ONE WEST is a corporate entity organized under the laws of an unknown

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State, purporting to have its corporate headquarters at 888 East Walnut Street, Pasadena, California

91101. This entity purchased or otherwise acquired INDYMAC FEDERAL BANK, F.S.B. and

INDYMAC MORTGAGE SERVICES. While the specific acts and omissions referenced herein

were committed by INDYMAC FEDERAL BANK, F.S.B. and INDYMAC MORTGAGE

SERVICES, liability therefore is imputed upon ONE WEST as their successor in interest.

INDYMAC FEDERAL BANK, F.S.B. was the lender pursuant to the Deed of Trust recorded on

January 31, 2007 as Instrument No. 2007047234. INDYMAC MORTGAGE SERVICES is a

mortgage lending arm of INDYMAC FEDERAL BANK, F.S.B whose principal place of business

is located at 1 Banting, Irvine, CA 92618.

43. Defendant ONE WEST does business in California and within the County of Los

Angeles.

44. Plaintiffs do not know the true names and capacities or basis for liability of defendants

sued as Doe 1 through Doe 25, Inclusive. Each fictitiously named Defendant is in some manner

liable to Plaintiffs, or claims some right, title, or interest in the Property, or both.

45. On January 24, 2007, Plaintiffs, as borrower, made, executed and delivered to

Mortgage Electronic Registration Systems, Inc., (“MERS”), the alleged beneficiary, a written

promissory note in the amount of $718,400.00.

46. To secure payment of the principal sum and interest as provided in the note and as part

of the same transaction, Plaintiffs, as trustor, executed and delivered to MERS, the alleged

beneficiary, a Deed of Trust dated January 24, 2007.

47. On March 5, 2009, defendant QUALITY, trustee, caused to be recorded a notice of

default and election to sell as Instrument No. 09-66894 of Official Records of Alameda County,

California, alleging that a breach of the obligation secured by the deed of trust had occurred,

consisting of Plaintiffs’ alleged failure to pay certain monthly payments of principal and interest,

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and said Defendant elected to sell, or cause to be sold, the trust property to satisfy that obligation.

48. Plaintiffs allege, on information and belief, that on or about March 2009, Defendants

failed to publish and post, or cause to be published and posted, at various times and at various

places certain notices of their intent to sell the trust property at public auction, purportedly to

satisfy the obligation secured by the deed of trust, on grounds of the alleged breach of the

obligation and under the power of sale in the deed of trust. The notice of sale indicated a sale date

of June 30, 2009.

49. Defendant trustee attempted and purported to sell the property on June 30, 2009,

accepted valuable consideration from Defendant DEUTSCHE, as trustee of the IndyMac INDX

Mortgage Trust 2007-FLX2, and then executed and delivered or caused to be executed and

delivered a trustee deed to DEUTSCHE, as trustee of the IndyMac INDX Mortgage Trust 2007-

FLX2. Said deed is purportedly dated July 1, 2009.

50. Plaintiffs allege the sale was improperly held and the trustee’s deed was wrongfully

executed, delivered and recorded in violation of the terms and conditions of the deed of trust and

state law, and in violation of the duties and obligations of Defendants to Plaintiffs, all to Plaintiffs’

loss and damage in that Plaintiffs are at a very real risk of being wrongfully deprived of the

beneficial use and enjoyment of the Property and has been deprived of legal title by forfeiture.

51. Plaintiffs had believed that their attorney had been negotiating a loan modification, and

up until the day before the sale of the Property, had believed that the sale would have been

postponed pending the loan modification. Plaintiffs were advised on the day before the sale of

their home that the request for modification had been categorically denied, with no other

explanation. Such further evidences the conspiracy and plan of Defendants, and each of them, to

take advantage of Plaintiffs, who believed that they were abiding by the system and retaining

experts in order to defend their rights.

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52. Plaintiffs contend that the actions of Defendants, and each of them, were willful,

intentional, carefully planned and thought out, with the purpose of obtaining profit and gain to the

detriment of Plaintiffs, senior citizens who have been severely taken advantage of and financially

abused.

SECOND CAUSE OF ACTION (To Cancel Trustee’s Deed)


52.

54. Defendant DEUTSCHE, as trustee of the IndyMac INDX Mortgage Trust 2007-FLX2,

and DOES 1 to 25, Inclusive, claim an estate or interest in real property described in paragraph 2

adverse to that of Plaintiffs, but Defendant’s claims are without right. Defendant has no estate,

right, title, or interest in the Property.

55. The claims of Defendant DEUTSCHE, as trustee of the IndyMac INDX Mortgage

Trust 2007-FLX2, and DOES 1 to 25, Inclusive, are based on the trustee’s deed purporting to have

been executed by defendant QUALITY., alleged trustee, and delivered to DEUTSCHE, and DOES

1 to 25, Inclusive, and purporting to convey the property to DEUTSCHE, as trustee of the

IndyMac INDX Mortgage Trust 2007-FLX2, and DOES 1 to 25, Inclusive.

56. Although the trustee’s deed may appear valid on its face, it is invalid and

void/voidable, and of no force or effect regarding Plaintiffs’ interests in the Property described in

paragraph 2, for the reasons set forth herein.

57. The interest in the described real property claimed by DEUTSCHE, and DOES 1 to

25, Inclusive, is a cloud on Plaintiffs’ title in and to the Property, tends to depreciate its market

value, restricts Plaintiffs’ full use and enjoyment of the Property, and hinders Plaintiffs’ right to

unrestricted alienation of it. If the trustee’s deed is not delivered and cancelled, there is a

reasonable fear that Plaintiffs will suffer serious injury, as an Unlawful Detainer action has already

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begun, and Plaintiffs are threatened with the very real possibility of being forced to leave their

home.

58. The conduct of Defendants, and each of them was deliberate, wilful, purposeful, done

with blatant disregard of the financial and emotional ramifications that would surely befall

Plaintiffs as a result of their conscious acts and omissions, and was a proximate cause of Plaintiffs

suffering damages in an amount to be proven at trial.

THIRD CAUSE OF ACTION (To Quiet Title)


58.

60. Plaintiffs seek to quiet title against the following claims of defendants: DEUTSCHE,

and DOES 1 to 25, Inclusive, the purported new purchaser of the Property, Defendant

DEUTSCHE, purported trustee, who was allegedly authorized to conduct a foreclosure as agent for

MERS on the Property and Defendants INDYMAC FEDERAL BANK, F.S.B. and ONE WEST,

who claim to be the holders of the original promissory note. Defendants claims are without right,

and Defendants have no right, title, estate lien or interest in the Property.

61. Plaintiffs name as Defendants in this action all persons unknown claiming (a) any

legal or equitable right, title, estate, lien, or interest in the Property adverse to Plaintiffs’ title, or

(b) any cloud on Plaintiffs’ title to the Property. The claims of each unknown defendant are

without any right, and these defendants have no right, title, estate, lien or interest in the Property.

62. Plaintiffs desire and are entitled to a judicial declaration quieting title in Plaintiffs as

of June 30, 2009 and restoring possession to Plaintiffs.

63. The conduct of Defendants, and each of them was deliberate, wilful, purposeful, done


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FOURTH CAUSE OF ACTION (Accounting)


63.

65. The amount of money still owed to Defendants is unknown to Plaintiffs and cannot be

determined without an accounting.

66. Plaintiffs demand judgment as follows:

a. That the Court issue a Declaration that the sale of the Property is null and

void and of no force and effect, and an order setting aside the trustee sale of the Property.

b. That the Court (a) issue an order that DEUTSCHE, and DOES 1 to 25,

Inclusive, deliver the trustee’s deed to the Court and (b) cancel the trustee’s deed.

c. That the Court order judgment quieting title to Plaintiffs, as owners of the

Property, declaring that DEUTSCHE, as trustee of the IndyMac INDX Mortgage Trust 2007-

FLX2, and DOES 1 to 25, Inclusive, has no right, title, estate, lien or interest in the Property

adverse to Plaintiffs.

d. That the Court render, between Plaintiffs and Defendants, an accounting

determining the amount, if any, actually owed to Defendants by Plaintiffs.

FIFTH CAUSE OF ACTION (Slander of Title)


64.

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68. The tort of Slander of Title involves the action of one who, without a privilege or

without justification to do so, publishes matter, which is untrue and disparaging to another’s

property in land.

69. Defendants, including Doe Defendants, purportedly acting as the agent of the

“current” but unascertained beneficiary of the Deed of Trust, wrongfully and without privilege

caused a Notice of Default to be recorded against the Property.

70. Later, one or more of the Defendants, including Doe Defendants, purportedly acting as

the agent of the “current” but unascertained beneficiary of the Deed of Trust, wrongfully and

without privilege, caused said Notice of Default to be served on Plaintiffs.

71. By doing the acts described above, Defendants, including Doe Defendants, slandered

Plaintiffs’ title to the Property because California Civil Code § 2924(a)(1)(c) was violated, and

such acts were not privileged.

72. Pursuant to, among others, California Civil Code § 2924(a)(1)(C), only the actual

beneficiary of a Deed of Trust or its assignee may cause to be recorded against Property either a

Notice of Default or commence with a Trustee Sale.

73. None of the Defendants, including Doe Defendants, have proof that they are the

holders of the Note.

74. The conduct of Defendants, and each of them, was deliberate, wilful, purposeful, done




75. Because Plaintiffs’ damages were the result of the unprotected and unlawful conduct

and acts of Defendants, including Doe Defendants, Plaintiffs are entitled to recover damages in an

amount to be proven at trial against Defendants, including Doe Defendants.

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SIXTH CAUSE OF ACTION (Fraud-Misrepresentation)

76. Plaintiff realleges and incorporates by reference the allegations in paragraphs 1

through 75.

77. California Civil Code § 1572 states that fraud exists when any of the following acts

and situations occur. Actual fraud consists in any of the following acts, committed by a party to

the contract, or with his connivance, with intent to deceive another party:

a. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; second, the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; third, the suppression of that which is true, by one having knowledge or belief of the fact; fourth, a promise made without having any intention of performing it; or any other act fitted to deceive.

78. Defendants ATIENZA, CENTURY 21 and ONE WEST as successor in interest to

INDYMAC FEDERAL BANK, FSB and its agents/employees, committed fraud by purposefully

evading the use of Plaintiffs’ true income which Plaintiffs had readily available and gave to

ATIENZA and CENTURY 21. ATIENZA, CENTURY 21 and Defendant, ONE WEST, as

successor in interest to INDYMAC FEDERAL BANK, FSB inflated Plaintiffs’ income on

Plaintiffs’ loan application to a level that would allow Plaintiffs to qualify for the loan in an

amount of $22,000 per month, instead of the truthful and provided income of $4,000 per month.

79. ATIENZA had informed Plaintiffs approximately two (2) weeks after they had

submitted their loan application and documentation concerning their income, that the requested

refinance had been denied by INDYMAC FEDERAL BANK, FSB. However, somehow

ATIENZA was able to “change the bank’s mind” concerning the issue, and miraculously was able

to give Plaintiffs “exactly what they had asked for.”

80. Plaintiffs are informed and believe and thereupon allege that Defendants, ATIENZA,

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CENTURY 21 and ONE WEST, as successor in interest to INDYMAC FEDERAL BANK, FSB,

having the information concerning Plaintiffs’ true income available to them, made a conscious

decision to inflate the income of Plaintiffs, changing a part time occupation of Plaintiff into a full

time lucrative career with heavy bonuses being paid monthly, in order to “qualify” Plaintiffs for

the subject loans.

81. Defendants ATIENZA, CENTURY 21 and ONE WEST, as successor in interest to

INDYMAC FEDERAL BANK, FSB had a responsibility, by well established law, to verify the

financial status of Plaintiffs, analyze the likelihood of Plaintiffs’ ability to repay the loans, not

based on the minimum payment, but based upon the entire amortized payment, and determine,

based on their knowledge, training and experience, whether or not the loan product was

appropriate and suited for Plaintiffs. Defendants represented that they had done this and Plaintiffs

were justified in believing that they had, and Plaintiffs were financially destroyed as a result of that

trust, belief and reliance.


INDYMAC FEDERAL BANK, FSB committed fraud by violating California Civil Code § 2924 et

seq. in demanding sums they were not entitled to receive, for the sole and only purpose of personal

profit.

83. Defendants, ATIENZA, CENURY 21 and ONE WEST committed fraud by knowing what

the Plaintiffs’ intention was by requesting a refinance of their Property. Defendants, and each of

them, knew that the loans they were offering Plaintiffs did not comport with Plaintiffs’ desires.

However, Defendants, and each of them, knowing that their statements were untrue, assured

Plaintiffs that the loan was “just what they had asked for.” Plaintiffs were justified in believing

Defendants, and were damaged as a result of that belief.

84. Defendants, ATIENZA, CENTURY 21 and ONE WEST, as successor in interest to

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INDYMAC FEDERAL BANK, FSB committed fraud by preparing loan documents that

specifically indicated that the principal and interest loan payment would be $2,567.74 per month,

at a 1.75% interest rate. Defendants ATIENZA, CENTURY 21, ONE WEST, and each of them,

represented to Plaintiffs that if they paid this amount, they would extinguish the loan in

compliance with the date set forth on the promissory note after thirty (30) years. Defendants knew

when they made these statements, that in truth, if Plaintiffs made those payments, over $4,400

would be added each month to the principal. The Defendants never told Plaintiffs this information,

used the trust that ATIENZA had “culminated” with Plaintiffs, in order to prey upon them and take

advantage of them. Plaintiffs were justified in believing Defendants, and were damaged as a result

of such belief and trust.

85. Defendants’ actions in this matter have been willful and knowing and/or with complete

and reckless disregard of the emotional or financial ramifications that would surely befall

Plaintiffs. Defendants’ actions were as a direct result of a scheme to further gain financially by

taking advantage of senior citizens who quite frankly did not understand the intentionally

confusing legal jargon with which the loan documents were drafted.

81. Defendants ATIENZA, CENTURY 21 and Defendant ONE WEST, as successor in

interest to INDYMAC FEDERAL BANK, FSB, conspired each with each other in order to take

advantage of Plaintiffs, who were senior citizens at the time the subject loan was offered and

Plaintiffs were induced into accepting.

82. Plaintiffs were reasonable in their reliance of the statements and representations made by

Defendants ATIENZA, CENTURY 21 and ONE WEST, as successor in interest to INDYMAC

FEDERAL BANK, FSB.


INDYMAC FEDERAL BANK, FSB’s conduct was intentional, despicable, willful, malicious,

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calculated, and deliberate. It was their intention to cause financial as well as emotional damage to

befall Plaintiffs in order that they profit.

SEVENTH CAUSE OF ACTION To Void Contract Based on

Impossibility of Performance California Civil Code §§ 1411, 1511, 1595 et seq.

(Against All Defendants)


83.

85. Plaintiffs are informed and believe, and based upon such information and belief

allege, that whereas the written contract has but a single object and such object is impossible to

perform, the entire contract is void.

86. The Defendants, and each of them, together with any DOE Defendants claiming to be

a holder in the course of the Note knew, or should have known, based upon the actual income

information provided by Plaintiffs to Defendants, ATIENZA, CENURY 21 and ONE WEST, as

successor in interest to INDYMAC FEDERAL BANK, FSB, and or DOE Defendants as well as

information inserted by ATIENZA, both individually and as an authorized agent of Defendant

CENTURY 21 into the loan application, Defendants, and each of them, knew, or should have

known, that Plaintiffs, quality assurance technician and house wife, could never have performed in

accordance with the terms set forth in the written contract over the life of the loan.

87. Defendants, and each of them, knew or should have known that the written contract

provided for a negative amortization payment schedule, and as such, as the payments were set

forth, there was no way that the loan would be repaid by the date set forth in the Note.

88. Despite being in possession, at all times of the information noted above, Defendants,

and each of them, together with any DOE Defendants claiming to be a holder in due course of the

Note, produced and tendered the loan documentation to Plaintiffs and sought to obtain the

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signature of Plaintiffs upon all such documentation, knowing at the onset of the written contract

that performance in accordance with the terms, was impossible.

89. Defendants, and each of them, knew or should have known, that Plaintiffs would be

forced to refinance their home loan at some point in the future in order to pay off the loan in

accordance with the repayment date set forth in the Note. However, Defendants, and each of them

knew that Plaintiffs were senior citizens at the time the loan was extended, and therefore would be

unable to refinance their home in order to comply with the terms of the Note, given the fact that

their number of years in which they would be able to work were very limited, being sixty-six (66)

years of age at the time and NATIVIDAD CABALU being a housewife.

90. Given that at the time the loan documents were executed by Plaintiffs, it was

impossible for Plaintiffs to repay the loan in accordance with the date set forth on the Note, the

Note was void at the time of its execution and an Order so stating should be issued by this Court.

EIGHTH CAUSE OF ACTION To Void Contract Based on Unconscionableness

California Civil Code § 1670.5(a) (Against All Defendants)

91 . Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1

through 90.

92. California Civil Code § 1670.5(a) states:

If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

93. The January 2007 written contract governing the subject loan is unconscionable for the

following reasons:

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• Defendants ATIENZA and CENTURY 21 breached their fiduciary duty owed to Plaintiffs

by falsifying loan documents and thus engaging in fraud.

• Defendants ATIENZA, CENTURY 21 and ONE WEST, as successor to INDYMAC

FEDERAL BANK, FSB, knew Plaintiffs would never have qualified for the loan they had

wanted to extend to Plaintiffs, based upon their true income, therefore they avoided the

documentation, failed to verify Plaintiffs’ income by “turning their head away”, which was

required by law and placed them in a Stated Income loan which was not available to wage

earners at the time the subject loan was funded.

• Defendants ATIENZA, CENTURY 21 and ONE WEST essentially “promoted” Plaintiffs

into a completely unauthorized and lucrative profession, without their knowledge or

consent, for the sole purpose of “closing the deal” and having them approved for a loan

that they knew, based on CECIL CABALU’S true income, they would never have been

able to have afforded over the life of the loan.

• Defendants and each of them, including their respective agents, never explained to

Plaintiffs the truth, that the mortgage payments could and would be more than what was

represented and stated in the Truth in Lending disclosure document.

• The language which Defendant ONE WEST, as successor to INDYMAC FEDERAL

BANK, FSB, used in the promissory note was incomprehensible, filled with legalese and

filled with unintelligible language, all designed to confuse the average English Speaking

purchaser, and when coupled with individuals such as Plaintiffs, it demonstrated the

specific intent and purpose of obscuring their rights and the unconscionableness of the

contract. It was designed to insure that Plaintiffs did not comprehend the true nature of the

agreement and the extraordinary costs that it contained. As a result, Plaintiffs relied upon

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the oral representations of the agents of Defendant, CENTURY 21 and the Truth in

Lending Disclosure.

• The subject loan was a negative amortization loan, a fact which all Defendants through

their agents, affiliates and employees and independent contractors, conspired, each with

each other, to conceal and attempted to conceal from Plaintiffs. Plaintiffs believed they

were paying the amounts as due in the Truth in Lending Disclosure and that they would be

able to liquidate or extinguish the Promissory Note by the date stated in the Promissory

Note. They further believed that the payments, during the first portion of the repayment

schedule, would further accomplish this. However, the balance due on the loan increased

rather than decreased.

• The Plaintiffs have been informed and believe and thereupon allege that they would have

qualified for a loan with better terms such as a fixed rate loan or a “safer” loan product.

• The Plaintiffs would have been approved for a better loan with a fixed interest rate, instead

of the exploding ARM they were lured into accepting.

• The loan extended to Plaintiffs were generally extended to those people with much worse

credit and foreclosures in their history, not for potential borrowers with the stellar credit

scores of the Plaintiffs.

• The Defendants knew that the loans were exactly opposite of what Plaintiffs had requested,

specifically, a lower interest rate, lower payments and possibly cash out to perform some

home improvements. Instead they were lured into accepting a loan with a false “teaser

rate” of interest, which later soared into an exploding ARM, subject to negative

amortization which added over $4,400 each month to the principle balance.

• Defendants ATIENZA, CENTURY 21 and ONE WEST, as successor in interest to

INDYMAC FEDERAL BANK, FSB and INDYMAC MORTGAGE SERVICES preyed

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upon the trust of Plaintiffs, and took advantage of their elderly status in order to confuse

them, lie to them, and thus deceive them into accepting a loan which was completely

contrary to their financial condition and needs for the sole purpose of profit.

94. Defendants’ action in this matter have been willful and knowing and/or with complete

and reckless disregard of the emotional or financial ramifications that would surely befall

Plaintiffs.

NINETH CAUSE OF ACTION Contractual Breach of Implied Covenant of Good Faith and Fair Dealing

(Against all Defendants)


94.

96. Every contract imposes upon each party a duty of good faith and fair dealing in its

performance and its enforcement. This implied covenant of good faith and fair dealing required

that no party will do anything that will have the effect of impairing, destroying, or injuring the

rights of the other party to receive the benefits of their agreement. The covenant implies that in all

contracts each party will do all things reasonably contemplated by the terms of the contract to

accomplish its purpose. This covenant protects the benefits of the contract that the parties

reasonably contemplated when they entered into the agreement.

97. The terms of the Promissory Note and the Deed of Trust imposed upon Defendants

INDYMAC FEDERAL BANK, FSB, and ONE WEST as its successor and/or assign, a duty of

good faith and fair dealing in this matter.

98. Defendants enjoyed substantial discretionary power affecting the rights of Plaintiffs

during the events alleged in this Complaint. Defendants were required to exercise such power in

good faith.

99. Defendants willfully breached their implied covenant of good faith and fair dealing

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with Plaintiff when Defendants:

i. Failed to provide all of the proper disclosures;

ii. Did not provide an accurate Truth In Lending Disclosure on the Option

ARM mortgage;

iii. Placing Plaintiffs into a loan whereby it was likely the Plaintiffs would

default or incur bankruptcy as a result of the loan and it was reasonable foreseeable that such

would occur;

iv. Offering a product that was not suited to the financial circumstances and

status of Plaintiffs;

v. Falsified loan documentation in order to “close a deal” to the detriment of

Plaintiffs;

vi. Placing Plaintiffs into a stated income loan whereby the Plaintiffs could be

liable for actions that the Plaintiff is unaware of;

vii. Placing the Plaintiffs into a loan with a significantly higher monthly

payment in order to receive a Yield Spread Premium;

viii. Fraudulently inducing Plaintiffs to enter into a mortgage transaction which

was contrary to Plaintiffs’ stated intentions, contrary to their interests, and contrary to the

preservation of their home;

ix. Placing Plaintiffs into a loan without a realistic test of the ability of the

Plaintiffs to repay the loan; and

x. Using the reminiscent and easily confused nature of elderly senior citizens

in order to culminate “trust” and “friendship” for the sole purpose of using undo influence to

financially take advantage of Plaintiffs.

100. As a result of Defendants’ breach of this covenant, Plaintiffs have suffered injury and

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will cause Plaintiffs to suffer the loss of their home and threatening loss of possession of their

home. Plaintiffs have incurred and continue to incur attorney’s fees and other costs and expenses

to right this wrong.

101. Defendants’ actions in this matter have been willful, knowing, malicious, fraudulent

and oppressive, entitling Plaintiffs to punitive damages in an amount appropriate to punish

Defendants and to deter others from engaging in the same behavior.

TENTH CAUSE OF ACTION

Violation of California Civil Code §§ 1920 and 1921 (Against All Defendants)

102. Plaintiffs reallege and incorporate by reference the allegations in paragraphs 1

through 101.

103. Based on information and belief, Plaintiffs allege that Defendants, and each of them,

violated California Civil Code sections 1920 and 1921 in failing to meet the requirements of an

adjustable rate mortgage instrument as set forth in California Civil Code section 1920 and the

requirements for disclosure of information and connections with an adjustable rate mortgage

instrument as set forth in California Civil Code section 1921.

104. As a proximate result of Defendants’ actions Plaintiffs have been damaged in an

amount not yet ascertained, to be proven at trial.

ELEVENTH CAUSE OF ACTION

Violation of California Civil Code § 1916.7 (Against Defendants)


through 104.

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106. Based on information and belief, Plaintiffs allege that Defendants, and each of them,

violated California Civil Code § 1916.7 in failing to provide the disclosure notice required by §

1916.7 in a timely manner.

107. Plaintiffs were not fully informed of the terms, pros, cons and risks of their adjustable

rate mortgage and other loan options that might have been more beneficial to them as a borrower.

108. As a result of Defendants’ actions, the loan is rescindable pursuant to § 1916.7.

109. As a proximate result of Defendants’ actions Plaintiffs have been damaged in an

amount not yet ascertained, to be proven at trial.

TWELFTH CAUSE OF ACTION

Rescission/Cancellation (Against all Defendants)


through 109.

111. Plaintiffs’ allege that the loan was obtained by Defendants, and each of them,

through mistake and fraud by engaging in deceptive practices as alleged herein.

112. Defendants, and each of them, with intent to deceive Plaintiffs to consent to the loan,

knew or should have known Plaintiffs were not capable of understanding or comprehending the

true costs of the loan; and which Defendants, and each of them, did fraudulently conceal from

Plaintiffs that Plaintiffs were at a risk of losing their home.

113. The active misrepresentations of Defendants, and each of them and their silence and

deceit, were false and fraudulent.

114. At the time Defendants, and each of them, made the misrepresentations and engaged

in the a conspiracy to conceal and deceive as herein alleged, and at the time Plaintiffs applied for

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the loans, Plaintiffs did not know that the misrepresentations, deceit and inducements by

Defendants and each of them, were false and fraudulent, but instead believed them to be truthful

and reasonably relied on them, thereby entering into the loan transaction without the benefit of

true facts, and by coercion and mistake.

115. As a result of the fraudulent misrepresentations and deceit by Defendants and each of

them, Plaintiffs have incurred substantial financial damages as herein alleged. Plaintiffs hereupon

serve notice of their demand for rescissionary damages on the grounds of fraudulent

misrepresentations, deceit and mistake by Defendants, and each of them as alleged herein. To the

extent that Plaintiffs’ loan transaction documents contain an exculpatory clause in favor of

Defendants, and each of them purporting to release Defendants, and each of them from their own

fraud, Plaintiffs allege that such a clause in unenforceable pursuant to Civil Code § 1668 and other

applicable law.

116. Plaintiffs hereby demand restitution from Defendants, and each of them, in an

amount that will restore Plaintiffs to a position they would have been in had Defendants and each

of them, not engaged in the willful, intentional and purposeful conduct herein alleged. Plaintiffs

further alleged that Defendants and each of them, have been unjustly enriched by the actions

herein alleged and all the fees, profits, payments and commissions earned by Defendants, and each

of them, must be disgorged by Defendants and each of them to Plaintiffs.

THIRTEENTH CAUSE OF ACTION

Unfair Business Practices (Against All Defendants)


through 116.

118. California Business and Professions Code § 17200 prohibits any unlawful, unfair or

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fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any

act prohibited by Business and Professions Code § 17500, et seq.

119. California Business and Professions Code § 17500, et seq. prohibits the making of a

statement or a publication or declaration concerning any circumstances or matter of fact connected

with the proposed performance or disposition of real or personal property, which pronouncement

is untrue or misleading, and which if known, or which by the exercise of reasonable care should be

known, to be untrue or misleading.

120. Defendants ATIENZA, CENTURY 21 and ONE WEST, as successor and/or assign

to INDYMAC FEDERAL BANK, FSB and each of them, have committed acts of unfair business

practices defined by California Business and Professions Code § 17200, et seq. by engaging in

acts and practices as alleged above, including but not limited to: continuously violating RESPA

and the Truth In Lending Act, using bait and switch tactics; making loans without providing

borrowers with sufficient, accurate and understandable information regarding the terms and

conditions of the loan; making loans without providing borrowers with sufficient, accurate and

understandable information regarding the nature and extent of the financial risk being assumed by

the borrowers; and making loans based on income information they themselves inflated in order to

“close the loan”.

121. The acts all as alleged above violate California Business and Professions Code §

17200, et seq. in the manner alleged above, and, based on information and belief, in the following

further respects: the conduct of Defendants and each of them, threatens an incipient violation of

various consumer protection statutes, or which violate the policy or spirit of such laws, including,

but not limited to, California Business and Professions Code §§ 10130 and 17500, California Civil

Code §§ 1709, 1710, 1711, 1770, 1920 and 1921 and § 1639 of Title 15 of the United States

Codes, together with Regulation Z, 12 C.F.R. 226.1.

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122. As a direct and proximate result of the aforementioned acts, by Defendants and each

of them, Plaintiffs sustained damages in an amount not yet ascertained to be proven at trial.

FOURTEENTH CAUSE OF ACTION

Breach of Fiduciary Duty (Against Defendants ATIENZA and CENTURY 21)


through 122.

124. At all times relevant, Defendants, through their agents, including but not limited to,

Defendant ATIENZA and CENTURY 21, created, accepted and acted in a fiduciary relationship

of great trust and acted for and were the processors of Property for the benefit of Plaintiffs.

125. Defendants, and each of them, breached their fiduciary duties owed to Plaintiffs as

they have acted and continue to act for their own benefit and to the detriment of Plaintiffs.

Among other things, they have placed and negotiated loans without due care to the best interests

of Plaintiffs and for the protection of their rights.

126. Defendants and each of them, breached their fiduciary duty owed to Plaintiffs by

violating California Civil Code § 2924f in extorting and demanding sums they were not entitled to

receive by charging “junk fees” and utilizing a “yield spread” scheme.


luring Plaintiffs into a loan and then requiring performance under a loan document which was

intentionally incomprehensible and filled with legalese. The Defendants also concealed the true

nature and terms by providing a “disclosure” of what the “loan payment” would be, knowing at

the time they made such statements, that if Plaintiffs in fact made those stated payments, the

negative amortization feature of the loan would cause thousands of dollars to be added to the

principal each month, effectively drowning Plaintiffs in a sea of debt that, based on the true

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income which Plaintiffs provided to Defendants, they knew she would never escape from. This

incomprehensibility was intended to insure that the Plaintiffs did not comprehend its terms, which

in turn permitted the Defendants and their successors to mislead the Plaintiffs and thereby

financially profit from its terms. The Defendants and each of them, continued this action by

demanding performance and payment of money, justifying these demands by the

incomprehensible language of the subject loan.


violating the accurate disclosure requirements of the loan and by failing to comply with the

Federal Truth in Lending Act (15 U.S.C §§1601-1666) and with the Act’s corresponding

Regulation Z (24 C.F.R. §§3500.1-3500.17) and thereafter by willfully failing and refusing after

demand made to correct these inaccuracies.


concealing from Plaintiffs that the subject loan was a negative amortization loan. They concealed

from the Plaintiffs the fact that this loan could never be paid off by its terms by the payments as

set forth in the Truth in Lending Disclosure, thus forcing Plaintiffs to lose their home, because, as

a result of their age, refinancing their property might not be an option.


luring Plaintiffs into a more expensive and higher interest rate loan than what they would and

should have qualified for, and lied to the Plaintiffs in doing so.


placing them into a Stated Income loan, knowing that such loan was not available to them as a

wage earner, thus exposing them to liability for future actions.


intentionally placing them into a loan program without any realistic test as to their ability to repay

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the loan, knowing that they themselves inflated their true income to a level that they knew

Plaintiffs would never obtain, given the profession of Plaintiff CECIL CABALU and the age of

the Plaintiffs, thus meaning that their working years were coming to an end, in order to “seal the

deal” and profit from the transaction, to the detriment of Plaintiffs.

133. The conduct of Defendants, and each of them, was willful, intentional, purposeful,

and done with the sole intention to profit, to the detriment of Plaintiffs.

134. As a consequence and proximate result of the aforementioned acts and breach of their

fiduciary duties, by Defendants and each of them, Plaintiffs sustained damages in an amount not

yet ascertained to be proven at trial.

135. The conduct of Defendants and each of them as herein alleged was a substantial

factor in causing the damages sustained by Plaintiffs and as a direct, proximate and legal result of

the above alleged breach of fiduciary duty, Plaintiffs have suffered and will continue to suffer

damages in an amount not yet ascertained to be proven at trial, including, but not limited to,

damages for loss of property, money, and damages for emotional distress.

136. Defendants, and each of them are guilty of malice, fraud or oppression, as defined in

California Civil Code § 3294, and Plaintiffs should therefore recover, in addition to actual

damages, damages to make an example of and punish Defendants and each of them.

FIFTEENTH CAUSE OF ACTION

Elder Abuse California Welfare and Institutions Code Section 15600, et seq.



through 137.

138. Plaintiff, CECIL CABALU was born on November 23, 1941 and was sixty-six (66)

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years old at the time the subject loan was extended and accepted. As such, in accordance with

California Welfare and Institutions Code § 15610.27, he was a senior citizen and is therefore,

afforded special protections under the laws of the State of California.

139. Plaintiff, NATIVIDAD CABALU was born on September 8, 1952 and was fifty-five

(55) years old at the time the subject loan was extended and accepted.

140. California Welfare and Institutions Code § 15610.30(a) defines financial abuse as the

taking of real or personal property with an intent to defraud. Civil remedies are sometimes

available under California Welfare and Institutions Code § 15657.03.

142. In addition, California Civil Code § 525 known as the California Consumer Legal

Remedies Act, which can be used in conjunction with all other legal remedies, specifies unfair

methods of competition and unfair or deceptive acts and practices for the sale of goods or services

to consumers, and includes specific enhanced penalties and protections for seniors as indicated in

California Civil Code § 1770(a)(23). California Civil Code § 3345 also provides for the recovery

of treble damages as a result of unfair or deceptive practices against senior citizens.

143. Defendants, ATIENZA, CENTURY 21 and ONE WEST, as successor in interest to

INDYMAC FEDERAL BANK, FSB, based the subject loan on the Plaintiffs’ home equity, as

opposed to their ability to repay the loan, in conscious disregard of their duties to Plaintiffs as well

as to the American economy in general.

145. Defendant CENTURY 21 and Defendant ATIENZA first made the conscious

decision to “close the deal” with regard to securing the Property of Plaintiffs by way of a Deed of

Trust at whatever cost.

146. Defendant ATIENZA, with the cooperation, support and ratification of Defendant

CENTURY 21, made the conscious decision that despite the stated intentions of Plaintiffs as to the

loan product desired, to “win over” the confidence of Plaintiffs by engaging them in reminiscent

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conversations regarding family and their native country of the Philippines in Tagalog, in order to

befriend Plaintiffs and cultivate trust.


CENTURY 21, made the conscious decision that she was going to convince Plaintiffs of her

knowledge of the loan markets at the time and convince Plaintiffs that she would “look out for

their interests” and get them “exactly what they asked for” with regard to a specific loan product.


CENTURY 21, realized that based on the true income of Plaintiffs, she would not be able to get

the Plaintiffs approved for the particular loan product she wanted them to sign off on. Therefore,

after thought and consideration as to the possible solutions, she made the conscious decision, and

such decision was ratified by Defendant CENTURY 21, that with the incentive of additional

profits and financial gains, she would place Plaintiffs into a no documentation/stated income loan

in order to inflate the income of Plaintiffs from the true income of $4,000.00 per month to

$22,000.00 per month in order to “approve” Plaintiffs for the negative amortization loan product

which offered a yield spread premium. ATIENZA did this despite having the true income as

indicated by income tax records and pay stubs available to her. True income likely would have

resulted in denial of the loan.


CENTURY 21, made the conscious decision that she would hide from Plaintiffs the true nature of

the loan, so as to ensure that they were not aware of what they were in fact agreeing to, for the sole

purpose of procuring her commission.

150. Defendant ONE WEST, as successor in interest to INDYMAC FEDERAL BANK,

FSB, made the conscious decision that despite requirements to the contrary, after receiving the

loan documentation of Plaintiffs created by Defendant ATIENZA, with the cooperation, support

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and ratification of Defendant CENTURY 21, made the conscious decision to ignore the fact that

verification of income had not been made and even failed to verify themselves, any information of

Plaintiff as to whether the loan should be approved. Their motivation was to secure the Property

of the senior citizen Plaintiffs upon foreclosure, who they knew were making further

improvements on the Property, in order to secure additional profit, at the expense of the Plaintiffs.

152. Defendant ONE WEST, as successor in interest to INDYMAC FEDERAL BANK,

FSB, made the conscious decision to work with Defendant CENTURY 21 and Defendant

ATIENZA that the Plaintiffs would be figuratively left in the dark as to the true nature and

exploding costs of the loan, so as to ensure that Plaintiffs would sign their names upon the loan

documents. They counted on the abilities of Defendant ATIENZA and CENTURY 21 to be able

to assure Plaintiffs that they were getting exactly what they had stated they wanted, so as to ensure

that the signatures of Plaintiffs would be affixed to the loan documents.

153. The “originating” Defendants received their unjust enrichment in the form of yield

spread premiums and inflated costs and simply waited patiently until Plaintiffs inevitable default

on the loan. At such time their plan would come to fruition and they would be able to sell the

Property at a foreclosure auction, likely to return to a party within the Defendants’ fraudulent

scheme.

154. Once the counted on default occurred, Defendant ONE WEST, as successor in

interest to INDYMAC FEDERAL BANK, FSB, made the conscious decision to ignore the

attempts on the part of Plaintiffs to work out a restructure or modification to the loan. Preventing

foreclosure was never their intention, they were counting on the foreclosure. Once default

occurred, they were quick to act and foreclose on the Property.

155. Defendants acts were willful, shameless, deliberate, calculated, scheming, intentional,

and done with complete and total disregard for the financial and emotional harm that would befall

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the Plaintiffs, despite their protected status of senior citizens.

156. Plaintiffs had no reason to believe that they would be taken advantage of. Their lives

have been turned upside down, in this, what is supposed to be, their golden years.

157. Plaintiffs are entitled to recover punitive and exemplary damages in addition to

attorney’s fees and costs of their suit incurred as a result of Defendants actions as hereinabove set

forth.

SIXTEENTH CAUSE OF ACTION

Conspiracy (Against ATIENZA, CENTURY 21, ONE WEST and DOE Defendants 1-25, Inclusive)


through 157.

159. During the period of January 2007 to the present, Defendants ATIENZA, CENTURY

21, ONE WEST, as successor in interest to INDYMAC FEDERAL BANK, FSB and unknown

DOE Defendants, and each of them, knowingly and willfully conspired and agreed among

themselves to conceal from Plaintiffs the true nature of the loan that they had lured Plaintiffs into

accepting. They misrepresented and concealed the current mortgage payments which were to be

paid after computing the fully amortized amount. They concealed from Plaintiffs the fact that this

was a negative amortization loan. They concealed the fact that a large portion of the fees paid at

the close of escrow were for no other reason but to profit the Defendants tied up in a Yield Spread

program. They concealed the fact that Plaintiffs actually qualified for a better rate mortgage loan

product. They concealed the fact that they had inflated their income on the loan application. They

concealed the fact that they had, in fact, created an entirely new occupation for Plaintiff so as to

enable them to qualify, as opposed to a documentation loan which is required of wage earners.

They concealed from the Plaintiffs the fact that the loan could never be paid off by its terms by the

payments as set forth in the Truth in Lending Disclosure. They concealed the true nature of the

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teaser rate of 1.75% and in fact, told Plaintiffs that this was the actual interest rate. Defendants

and each of them, knew that based on the true income readily available to Defendants for

verification, that the fully amortized loan payments actually greatly exceeded the available income

of Plaintiffs, but they conspired, each with each other, to hide this fact from Plaintiffs in order to

induce them into accepting the loans. Defendants and each of them, concealed each and every

month the nature and extent of the ever growing principal and the reason therefore.

160. Each and every Defendant did the acts and things herein alleged pursuant to, and

furtherance of, the conspiracy and the above-alleged agreement to secure these additional

payments and money from Plaintiffs and conceal its nature from Plaintiffs.

161. Defendant and each one of them, furthered the conspiracy by cooperation with, or

lent aid and encouragement to, or ratified and adopted the acts of the other Defendants.

162. Plaintiffs are informed and believe and thereon allege that the overt acts in pursuance

of the above-described conspiracy occurred and are occurring by each Defendants’ continued

actions, including non-judicial foreclosure, and its consequential costs to Plaintiffs. Plaintiffs have

incurred substantial legal costs to protect their legal rights.

SEVENTEENTH CAUSE OF ACTION Intentional Infliction of Emotional Distress



through 162.

164. The actions of Defendants and each of them, which has resulted in Plaintiffs now

being faced with the possibility of losing the Property forever, the very Property that Plaintiffs

have called home, the Property they worked their entire lives to achieve, constitutes outrageous

conduct.

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165. Defendants and each of them, knowingly, intentionally, purposefully, and with

complete disregard for the consequences which would befall Plaintiffs, committed these acts with

reckless disregard of the probability of causing Plaintiffs to suffer emotional distress.

166. The acts of Defendants as herein above described and each of them, have resulted in

Plaintiffs suffering severe anxiety, asthma, nervousness, depression, fear, diabetes aggravation,

insecurity and extreme emotional distress.

167. The outrageous conduct of Defendants as herein above described and each of them,

which was, in by no stretch of the imagination privileged, is the actual and proximate cause of the

severe emotional distress suffered by Plaintiffs. Plaintiffs, who thought they could trust

Defendants ATIENZA and CENTURY 21 due to their fiduciary relationship and seemingly close

“friendship” with Defendant ATIENZA, relied on the expertise and training of Defendants to

guide them in this extremely important decision of the refinance of their home, only to be

deceived, lied to, victimized by theft, deliberately subjected to a situation wherein Plaintiffs would

be forced to incur additional fees and expenses in order to overcome, targeted for predatory loan

tactics, taken advantage of and now being faced with losing their home, have all caused Plaintiffs

extreme emotional distress.

168. Despite legislation enacted by the State of California to the contrary, Defendants and

each of them, refused to finalize a loan modification in order to cure the default status of the

Property, sold the Property at Trustee’s Sale and now have initiated an unlawful detainer action

for the sole purpose of forcing Plaintiffs to leave their home.

169. The conduct of Defendants as herein above described, and each of them, was so vile,

base, contemptible, miserable, wretched and loathsome that it would be looked down upon and

despised by ordinary people. The conduct of Defendants, committed intentionally against senior

citizens, is shocking and vulgar. The conduct and actions of Defendants and each of them, as

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hereinabove described, was done as a result of greed, with the sole and only purpose and intent to

enjoy unjust profits and monetary enrichment at Plaintiffs’ expense. Plaintiffs are therefore

entitled to punitive damages in an amount appropriate to punish Defendants and to deter others

from engaging in similar conduct.

EIGHTEENTH CAUSE OF ACTION Injunctive Relief

(Against all Defendants)


through 169.

171. Plaintiffs are entitled to injunctive relief in this matter based upon the fact that neither

of the Defendants attempting to singularly or collectively foreclose on the Property is the real

party in interest in the foreclosure proceeding nor can they be the real party in interest in

defending this action. Only the real party in interest can prosecute or defend a lawsuit and

moreover, only the real party in interest can proceed with a judicial foreclosure. Plaintiff is

informed and believes and thereon alleges that neither of the Defendants is the holder of the note

on the Property. Therefore, neither of the Defendants has the right to proceed with a foreclosure on

the Property and the Defendants should be enjoined from proceeding with a foreclosure without

producing the original note and moreover establishing that they are holders of the note.

172. Defendants and each of them, have failed to make good faith reasonable efforts to

attempt to make a mortgage workout plan between Plaintiffs and Defendants, all of which would

have worked out to Defendants’ advantage and given them adequate protection of their interest in

the Property. Such failure and refusal to act in good faith by defendants is manifested by:

(1) Failure to follow California Civil Code § 2924, et. seq. in dealing with Plaintiff;

(2) Failure and refusal to comply with the fair debt collection practice laws of the State of

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California in attempting to collect a debt and the federal equivalent of said laws.

NINETEENTH CAUSE OF ACTION

Declaratory Relief (Against all Defendants)


through 172.

174. An actual controversy has arisen and now exists between Plaintiffs and Defendants,

regarding their respective rights and duties concerning the status and validity of the loan and

Promissory Notes, the Deeds of trust, nominated beneficiaries on the Deeds of Trust, actual

beneficiaries, loan servicers, and the foreclosure process in that Plaintiffs contends that Defendants

do not have the right to foreclose on the Subject Property because Defendants do not have

possession of the original Promissory Note and that the purported power of sale contained in the

Deed of Trust no longer applies, pursuant to California Civil Code § 2932.5.

175. Plaintiffs request that this Court find that the purported power of sale contained in the

Deeds of Trust is of no force and effect because Defendants’ security interest in the Property has

been rendered void.

176. Plaintiffs further request that this Court find that the Defendants are not the holder in

due course of the Promissory Notes.

177. A judicial declaration is necessary and appropriate at this time and under these

circumstances in order, so that the Plaintiffs may ascertain their rights and duties and avoid loss of

possession of their home through the unlawful detainer action filed by Defendants DEUTSCHE.

178. As a result of the actions of Defendants, Plaintiffs have suffered damages according

to proof and seek declaratory relief that Defendants did not have a right to foreclose and that

Defendants’ purported power of sale in the Deed of Trust is void and have no force or effect

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against the Property.

179. Defendants’ actions in this matter have been willful and knowing.

TWENTIETH CAUSE OF ACTION

Violation of Cal. Civ. Code §1632 (Against Defendants ATIENZA, CENTURY 21, INDYMAC FEDERAL BANK AND

ONE WEST)

180. Plaintiffs hereby incorporate by reference each and every one of the preceding

paragraphs as if the same were fully set forth herein.

181. California Civil Code § 1632 provides that any person engaged in a trade or business

who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in

writing, in the course of entering into any of the following, shall deliver to the other party to the

contract or agreement and prior to the execution thereof, a translation of the contract or agreement

in the language in which the contract or agreement was negotiated, which includes a translation of

every term and condition in that contract or agreement.

182. Plaintiffs hereby claim violation of this California Civil Code section, alleging, that

Plaintiffs did not understand the loan documents and the translations were provided in English

only and said terms and conditions of the note and deed of trust were actually negotiated in

Tagalog and not English.

183. Under this Violation of California Civil Code section, Plaintiffs have the legal right to

rescind such loans.

PUNITIVE DAMAGES


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through 183.

185. Plaintiffs allege that Defendants, and each of them, are guilty of malice, fraud and

oppression as defined by California Civil Code § 3294, and that Plaintiffs should recover, in

addition to actual damages, damages to make an example of and to punish Defendants and each of

them for their actions.

PRAYER

WHEREFORE, Plaintiffs pray judgment as follows:

1. That the Court issue a Declaration that the sale of the trust Property is null

and void and of no force and effect; and an order setting aside the trustee sale of the Property.

2. That the Court: (a) issue an order that Defendant DEUTSCHE, and DOES 1

to 25, Inclusive, deliver the trustee’s deed to the Court and (b) cancel the trustee’s deed.

3. That the Court order judgment quieting title in Plaintiffs CECIL CABALU

and NATIVIDAD CABALU, as owners of the Property, declaring that DEUTSCHE, and DOES 1

to 25, Inclusive, have no right, title, estate, lien or interest in the Property adverse to Plaintiffs and

order that Plaintiffs be restored to possession of the Property.

4. That the Court render, between Plaintiffs and Defendants, an accounting

determining the amount, if any, actually owed to Defendants by Plaintiffs.

5. That Defendants render proof of existence of their alleged note and security

interest on the Property.

6. That Plaintiffs CECIL CABALU and NATIVIDAD CABALU be declared

the prevailing parties.

7. For attorney fees and costs of suit.

8. For general and special damages.

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9. For punitive damages.

10. For such other and further relief as the Court may deem proper.

Dated: August____2009 ANGEL AT LAW, INC. A Professional Law Corporation

By: Brian A. Angelini, Esq. Attorney for Plaintiff

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Verification

I, CECIL CABALU, am a Plaintiff in the above-entitled matter. I have read the

Foregoing Complaint and know the contents thereof. The same is true of my own knowledge,

except as to those matters which are herein alleged on information and belief, and as to those

matters, I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed this the ______ day of August, 2009 at Newark, California.

___________________________ CECIL CABALU Declarant

Verification

I, NATIVIDAD CABALU, am a Plaintiff in the above-entitled matter. I have read the

Foregoing Complaint and know the contents thereof. The same is true of my own knowledge,

except as to those matters which are herein alleged on information and belief, and as to those

matters, I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed this the ______ day of August, 2009 at Newark, California.

___________________________ NATIVIDAD CABALU Declarant

Documents

BRIAN A. ANGELINI, ESQ. [SBN 234072]